from the the-justice-pendulum-moves-slightly-in-the-other-direction dept

David Eckert, the Deming, NM man who was subjected to hours of invasive anal "searches" by two police officers (and a very compliant hospital staff), has received a settlement from two of the entities named in his lawsuit. For those of you who don't remember what Eckert went through in order to "produce" drugs he simply didn't have, here's the rundown.

Eckert's abdominal area was x-rayed; no narcotics were found.

Doctors then performed an exam of Eckert's anus with their fingers; no narcotics were found.

Doctors performed a second exam of Eckert's anus with their fingers; no narcotics were found.

Doctors penetrated Eckert's anus to insert an enema. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.

Doctors penetrated Eckert's anus to insert an enema a second time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.

Doctors penetrated Eckert's anus to insert an enema a third time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.

Doctors then x-rayed Eckert again; no narcotics were found.

Doctors prepared Eckert for surgery, sedated him, and then performed a colonoscopy where a scope with a camera was inserted into Eckert's anus, rectum, colon, and large intestines. No narcotics were found.

Every search was nonconsensual and Eckert was detained for a total of 14 hours by the police, who also apparently mocked him before, during and after the medical procedures. The "justification" for these searches was one officer's "observation" that Eckert stance when he exited his vehicle was a bit "too erect" for an innocent man. The drug dog alerted on Eckert's car seat and at that point, the "evidence" was apparently too much to be ignored. When everything was said and done, the Gila Regional Medical Center presented Eckert with a bill for the procedures performed on him against his will and sent collection agencies after him when he refused to pay.

Eckert sued the city of Deming, Hildalgo County, the doctors involved, the Gila Regional Medical Center (which performed the searches after doctors at the Deming hospital refused to) and the District Attorney. So far, he's received a settlement from the city and county.

In December, Hidalgo County and the City of Deming settled.

Through a records request, 4OYS learned that settlement amount is set at $1.6 million.

"The gratifying aspect of this case is the media attention that it has gotten and the opportunity for discussions in the law enforcement and medical communities about how to deal with these opportunities and what to do with requests from law enforcement about medical exams for people in custody," Eckert's attorney Joseph Kennedy said.

Here is the settlement breakdown: Hidalgo County will pay $650,000 and the City of Deming will pay $950,000.

If the other entities involved "refuse to take responsibility," Eckert's lawyer will push for a jury trial. This ends the financial bleeding for the city and county, the latter of which has already spent $55,000 in taxpayer funds fighting the lawsuit. There's always the slim hope that large settlements will encourage the overseers of police departments (city and county governments) to realize that preventative measures are likely the cheaper option. Officers, like the two involved in this case, should be ousted before they cost taxpayers millions of dollars in settlements. (It's unlikely this was either officer's first abusive act.) Failing that, the penalties for the officers involved should be severe enough that it discourages other officers from engaging in abusive acts -- for instance, holding the individuals involved financially responsible for the reimbursing the cost of the settlements.

As it stands now, Eckert has received $1.6 million and the implicit admission that he was wronged by the city and county via the officers' actions. Now, he needs the same from the hospital that was so willing to aid these officers in tormenting him in search of drugs he didn't possess.

It is kind of sad. A full trial would probably take much longer and I'm sure the guy has suffered enough psychological trauma for his life but it could spark concrete measures against the abuses. Notably I find it disappointing that the officers are not being directly prosecuted for such blatant abuses (if I got it right the doctors will have to face the consequences). If law enforcement is not held accountable for its abuses a whole world of misconduct is open, ripe for abuse. They already have too much power and way too much judicial immunity - although I can see why they need some sort of protection it is clear that such protections are way too broad as they are set up now.

It's not an exclusive issue of the US. Here we have our share of such abuses too as do other countries I have more contact with and knowledge so I'm gonna guess it's sort of a worldwide problem. Now, who judges the judges eh?

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I still don't understand how and why anyone would go along with at least half of those examination, that is just fucked. I know some people would say "Oh you talk big, but you would go along as well." but hell no, seriously... surgery??? No fucking way I would EVER accept that without a lawyer present and a court order. That's just insane. Not even the repeated enema.I hope seriously hope that the involved people will get fired and at least that they reject the settlement and they will go to court, because this shit gotta stop.

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I hope to god I would have the moral fortitude to step back and say no, that's wrong. That being said, we're looking at this from a nice clean view with enough facts known to make our judgments. I'm not excusing or even attempting to excuse the doctors, nurses or the cops behaviors. But I would imagine crowd psychology, racial prejudices, the moral flexibility of the cops and Eckert challenging the cops alpha status all came together to create this situation. Bullies are usually smart enough to keep themselves out of trouble but this situation escalated somehow that there was a clear paper trail of wrong doing. I would hope that someone in a position to effect change would look at this situation and figure out a way to minimize the chances of it happening again rather than looking at a payout as enough of a punishment.

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Thing is, most people aren't aware of their rights. That's why those anal probing ass clowns can get away this stuff. Some guy called into a fast food restaurant and pretended he was law enforcement. He then told the manager one of their employees(female), was suspected of a crime and needed to be detained. The caller then ordered the manager to strip search her and perform cavity exams. The fact that this has happened numerous times in different states and counties shows how we believe that our officers have full and unquestioned authority over us. This leads to some officers abusing their authority and regular citizens becoming their unwitting accomplices.

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"...if I got it right the doctors will have to face the consequences"

Maybe not. I don't know about New Mexico, but some states, under the guise of "tort reform", have passed laws greatly limiting doctor's liability for pain and suffering. So, in some places, doctors can now get away with this kind of stuff with relative impunity.

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So he wouldn't get money for pain & suffering. They'd still be on the hook for punitive damages. This was pure malpractice. The doctors were under no legal obligation to engage in these procedures, the procedures were not medically necessary, and the harmfulness of them in the totality is self-evident.

pain and suffering n. the physical and mental distress suffered from an injury, including actual broken bones and internal ruptures, but also the aches, pain, temporary and permanent limitations on activity, potential shortening of life, depression, and embarrassment from scarring, all of which are part of the "general damages" recoverable by someone injured by another's negligence or intentional attack. The dollar value of damages for pain and suffering is subjective, as distinguished from medical bills, future medicals, and lost wages which can be calculated, called "special damages." (See: damages, general damages, special damages, suffering)

Punitive damages, also known as exemplary damages, may be awarded by the trier of fact (a jury or a judge, if a jury trial was waived) in addition to actual damages, which compensate a plaintiff for the losses suffered due to the harm caused by the defendant. Punitive damages are a way of punishing the defendant in a civil lawsuit and are based on the theory that the interests of society and the individual harmed can be met by imposing additional damages on the defendant. Since the 1970s, punitive damages have been criticized by U.S. business and insurance groups which allege that exorbitant punitive damage awards have driven up the cost of doing business.Punitive damages have been characterized as "quasi-criminal" because they stand halfway between the criminal and Civil Law. Though they are awarded to a plaintiff in a private civil lawsuit, they are noncompensatory and in the nature of a criminal fine.

Punitive damages were first recognized in England in 1763 and were recognized by the American colonies almost immediately. By 1850, punitive damages had become a well-established part of civil law.

The purposes of punitive damages are to punish the defendant for outrageous misconduct and to deter the defendant and others from similar misbehavior in the future. The nature of the wrongdoing that justifies punitive damages is variable and imprecise. The usual terms that characterize conduct justifying these damages include bad faith, fraud, malice, oppression, outrageous, violent, wanton, wicked, and reckless. These aggravating circumstances typically refer to situations in which the defendant acted intentionally, maliciously, or with utter disregard for the rights and interests of the plaintiff.

Unless otherwise required by statute, the award of punitive damages is left to the discretion of the trier of fact. A small number of states refuse to award punitive damages in any action, and the remaining states have instituted various ways of determining when and how they are to be awarded. In some states, an award of nominal damages, which acknowledges that a legal right has been violated but little harm has been done, is an adequate foundation for the recovery of punitive damages. In other states, the plaintiff must be awarded Compensatory Damages before punitive damages are allowed.

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Particularly as the warrant was actually not valid for the time and location of the hospital that did the procedure (was in a different county, I think?).

Actually, that *may* open the officers up to false arrest charges once he expressed his unwillingness to undergo the "medical" procedures... as it was under authority that was not being exercised in the appropriate jurisdiction.

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That's for malpractice, unwillful mistakes. This has nothing what so ever to do with malpractice. This is performing invasive risky procedures against someones will. They should have there license to practice medicine revoked and be facing criminal charges.

Who foots the bill?

Before anyone says something stupid about the taxpayers should not have to pay for this, let me remind you that the reasons the taxpayers pay is because they are doing nothing about it. The taxpayers DESERVE to pay for these clowns botch ups. Until 'We The People' put ourselves back in charge this doesn't stop.

Re: Re: Who foots the bill?

Re: Re: Who foots the bill?

That's not Mike hiding those comments. For the last friggin' time, Mike does not choose which comments to hide. It's the community, and yes, I clicked report too. Each person who clicked report on those comments did so individually, there was no conspiracy or meet-ups or conversations between Techdirt members saying "Guys, click report on this!" We all as individuals read those comments and individually came to the conclusion that they had nothing to do with the article.

If you want to complain about your posts being hidden, go right ahead. Just don't immediately start off assuming that it was Mike. It wasn't. It was me and those of the Techdirt community who clicked report. Direct your complaints to us.

Re: Re: Who foots the bill?

In fact, a story such as this would actually not be out of place on Techdirt. The problem is you're introducing it in the comments section of an article that has nothing to do with it.What I suggest you do is write up an article yourself and submit, and hopefully it gets published. That way, the story and point you want to make gets addressed and seen by an audience and then we can have a discussion. No-one wants to be reading an article about the MPAA, cinemas and Google Glass and then suddenly someone brings up Thailand for some fucking reason: that's an entirely different topic. It'd be like being in English class studying Shakespeare one day and then your professor mid-quote in Romeo and Juliet starts talking about the effects of the logging industry in South America. Good topics both, but they just don't belong together.

Re: Who foots the bill?

But this is premised upon "respondent superior", one of several bases for secondary liability...and yet, this site regularly rails against any suggestion of secondary liability since the one being sued is not the person(s) committing the underlying legal act.

This comment is not to suggest that the governmental groups should be cut slack (even though it is taxpayers who ultimately have their pockets picked for something they would certainly find offensive), but only to point out an inconsistency.

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Re: Re: Who foots the bill?

I would say you have it all backwards. The citizens/taxpayers are at fault. When we no longer have the ability to speak out against these things and call for heads then you may have a point, but once we no longer have a say then its time to start directly lead their direction not words.

This is not like suing the gun manufacturer because someone was killed with their gun. The one pulling the trigger is at fault. Incidentally... the taxpayers are the ones pulling the trigger on who is in power.

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I'm 61 and recently got the camera up my butt and with the drugs they gave me I don't even remember it happening. My doctor sticks his finger in there every year during my physical. Not exactly enjoyable (guys of a different persuasion might think so) but not exactly painful either. What this guy suffered was embarrassment and inconvenience. That is not to say the officers should not be fired for being complete idiots and the doctors who helped them severely disciplined by their boards. How exactly did the dog alert? Did he just seem to spend a little extra time sniffing the seat or did he go crazy ripping it apart? Maybe he just said rutt row.

This guy deserves some compensation but 1.6 million from taxpayers is a bit much. Whatever is paid should come directly out of the pockets of everyone who participated.

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I'm 61 and recently got the camera up my butt and with the drugs they gave me I don't even remember it happening. My doctor sticks his finger in there every year during my physical. Not exactly enjoyable (guys of a different persuasion might think so) but not exactly painful either. What this guy suffered was embarrassment and inconvenience. That is not to say the officers should not be fired for being complete idiots and the doctors who helped them severely disciplined by their boards. How exactly did the dog alert? Did he just seem to spend a little extra time sniffing the seat or did he go crazy ripping it apart? Maybe he just said rutt row.

This guy deserves some compensation but 1.6 million from taxpayers is a bit much. Whatever is paid should come directly out of the pockets of everyone who participated.

@OldGeezer... just what is your definition of 'freedom' and 'rights'? Suppose he was just passing out flyers of the "Declaration of Independence" which according to 'our new age laws' is illegal because it contains incendiary language against the government. What would you say then? How about you suffer "embarrassment and inconvenience" the next time police just decide you are a criminal.

The point is not about what was convenient or not... abuse of our rights is not a convenience issue... its a core problem! 1.6 million is just to try to set and example... but at the end of the day, heads should have rolled!

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By this reasoning, because my wife and I have consensual sexual relations, no woman should have grounds for a lawsuit or criminal prosecution of any racist. After all, by your words, rape is an embarrassment and inconvenience.

That it was performed by employees of the state and local governments, and by physicians who (besides being regulated and instructed by policies) have sworn an oath to "do no harm," makes it a physical attack.

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Never said he did not have every reason to sue for an extreme violation of his rights. Emotionally I am sure he suffered but there was no real physical pain involved. If it happened to me I would not only expect a cash settlement but I would want the names of everyone involved published and fired or at least severely disciplined. 1.6 mil is still a bit much.

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What needs to be done is just what you mentioned, make the individuals in question foot the bill for their actions.

Go directly after the officers and doctors, and slam them with fines so high they'll be paying them off for decades to come, and let it be known that future abuse will be treated the same way, not with a taxpayer paid settlement, but the person(s) responsible paying out themselves.

Do that and I can guarantee they'd take note, until then, it's exactly as you say, they don't care, and have no reason to, because it's not their money being paid out in cases like this.

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Yeah, soon their lawyers will be talking to the press about how they intend to fight the case because the lawsuit was only filed because the plaintiff was just butthurt about being arrested - oh wait - nevermind.

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Just how exactly does what these officers did constitute NEGLIGENCE? They didn't accidentally forget to not violate his rectal rectal region multiple times. This was an OVERT action taken WILLFULLY and PURPOSELY by these officers.

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The possibility exists that everyone involved in this fiasco could be in cahoots for their split of the taxpayers' payout. If that is all it takes to get a share of $1.6 MM, it has to be agreed that its a hell of a lot easier than some poor average Joe scamming the lottery.

eye-for-an-eye

I have a better idea. Instead of socking it to innocent taxpayers, make the actual culprits pay. Force all the cops - and medical staff enablers - to undergo all those procedures on themselves. Filmed and uploaded to Youtube.

Since statutory damages are typically up to ten times actual damages, I would propose that all these people be subjected to everything done to the victim TEN TIMES OVER.

Re: eye-for-an-eye

No, that would be little more than 'mob justice', which isn't just in any sense of the word, you want them to pay, hit them in the wallet, directly, none of this 'settlements paid with taxpayer money' crap.

For the 'cops'/thugs, assuming they aren't fired on the spot, take a decent chunk out of every single one of their paychecks until the amount is paid back, and if they quit/retire before the full sum is paid, either take the difference out of their pensions, or just make them pay it back some other way.

If they are fired, treat it like any other debt, just because they no longer work there, doesn't mean it goes away, so if they have to start selling their stuff to pay off the debt, too bad for them.

For the 'doctors', and I use that word very loosely given their actions, they deserve to be flat out fired and their medical licenses revoked after such blatant disregard of medical ethics. Given this will turn a previously highly valuable degree into nothing more than paper, I'd say that would be punishment enough, no need for further monetary punishments, and they can go find another job, hopefully one where they'll act in a less reprehensible manner in the future.

Re: eye-for-an-eye

The taxpayers are not innocent. In this case, they re-elected a sheriff and police chief with histories of this sort of abuse, and a mayor with a track record of being incredibly "tough" on drug offenses. In a democracy, and in this case, the people have the power, and power comes with responsibility. If they didn't want to pay for this, they shouldn't have voted for who they did - and they shouldn't have sat by and let this happen.

Response to: Anonymous Coward on Jan 22nd, 2014 @ 6:40am

Medical licensing

In the UK the licence to practice medicine is managed by the General Medical Council who can and do withdraw the licence from doctors who perform unethically. There is a formal process called "fitness to practice" which the GMC can invoke to withdraw a licence. One of the grounds under which a doctor can be found unfit to practice is a "doctor has abused a patientís trust or violated a patientís autonomy or other fundamental rights."

What is the state or federal equivalent in the USA? Can the doctors be reported to it?

Re: Medical licensing

There is a state board that does that. After they loose license in home state, there is always revocation of licenses in other states, if they have one. That means, they have to find another job in another less stressful field.

The novel strategy should be to go ALSO after medical licenses psychologists's who certified that criminals are fit to work for police.

In any case, victim shoul go also after medical malpractice insurance of both medical coconspirators and psychologists.

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The doctors (and especially the nurses) may have gone along with this because they were afraid of losing their jobs if they refused.

It needs to be explained to them (by yanking their licenses) that if they had lost their job for the crime of being decent human beings, they might have gotten another job. But by their cowardice and lack of moral fibre, they now lose their license to get a job in their field anywhere. This is important in order to send the message that ethics, especially medical ethics, have real meaning.

sounds to me like it's the others involved here who are 'in the shit' now!

i am not too surprised by the actions of the police officers (not agreeing with it in any way at all, though!) given the way we are turning into a 'Police State' where people seem to have or are treated as having, no rights at all, but as for the conduct of the medical people involved, that is even more disgraceful! all need to lose their jobs with the medical staff struck off as well!

New Mexio has a problem with police

Seems to me that there was another case of police/sheriff abuse of a prisoner in the news recently. A man was tossed into a room for two years and basically forgotten about. Somehow he got some food but after he got out he looked skeletal with a long beard and hair and is clothing was in tatters. No toilet facilities were in the room, so you can imagine what that caused. I can't remember what it cost the jurisdictions in this case or whether it has been resolved. I'm not sure I want to travel through New Mexico under any circumstances much less live there.

Re: Only $1.6M?

Agreed. Then again I'm principled/spiteful enough that I'd push for more outright ruination.

I wonder if it is possible to come up with a different sort of settlement: the city can avoid fiscal liability, they just need to remove all legal immunity from those involved. Probably regrettably barred but it would be a good way to get them to think twice about police brutality when they all find themselves in jail for decades and on sex offender registries.

Name Names

I've read several articles about this incident. They all give the name of the victim, David Eckert, but none have named the police officers, the doctors, or the nurses.

Doesn't society have a legitimate need to know WHO is actually responsible for this travesty? Shouldn't the perps, at a minimum, be held publicly accountable? I don't believe that they deserve to be spared the embarrassment of having their names out there. If they feel they did the right thing, then they should stand behind their actions instead of hiding.

There is likely no legal basis to charge any part of the settlement to the police officers involved. 'Qualified immunity' while acting in an official capacity is effectively 'full immunity'. They can be fired, eventually. Typically those in the process of being fired for cause resign first, with a confidentiality agreement in exchange for the resignation. So their bad acts don't even show up on their employment record.

At this point the hospital and doctors involved should be very worried. The staff may claim they feared for their jobs if they refused the police. Especially the doctor, who was, I believe, foreign born and trained might have this as a significant concern. That might transfer financial liability to the hospital, but it wouldn't prevent professional discipline. Perhaps they will claim they feared police retribution if they did not comply... that might be interesting..

I just wonder how the dog alerting on the car seat justified them assuming he had something up his ass. Was he farting cocaine fumes into it? Dogs can be helpful in finding drugs but interpreting their actions can be sometimes be entirely subjective. Other times it is unmistakable. When I was in the Army they brought a drug dog into the barracks. A friend had a bag of pot hidden in his mattress cover. The dog went straight for it barking loudly and pulling on the mattress in his teeth.

Why was the X-ray and one probe not enough for these idiots? Wouldn't a warrant be required for even this much? Any judge would set some kind of limits. No way he would have allowed any further action after an X-ray was negative.

Is there some part of the story we are not hearing? Maybe this guy was a drug dealer and the cops were waiting to bust him. It just so happened he was not carrying this one time.

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The dog alerted to the car seat, not his ass. Thus they only had probable cause to search the car seat, not his ass. I'm pretty sure that car seats and men's asses are two different things, otherwise my car seat will be sitting on a man's ass as I drive home today.

Sounds like this man was raped, sodomized, and all involved in this heinous, felonious act should be tried by a jury of their peers. There probably is not a Grand Jury with the stones to do the right thing though. Guess President Obama's Chicago preacher was correct, "God Damn The United States Of America"...

They're lucky it was not me because I would have took their asses to the cleaners. Suing for a few hundred million demanding a jury trial and demanding criminal charges to be brought against everyone involved.

He could have bankrupted them and they need to remember that the next time one or more of their officers fucks up.

why this "may" have happened

Not condoning this in ANY way, however, I read about this on another site, and I believe the "victim" in this case was caught with drugs hidden in his anus before, on a previous arrest, (or at least that is what was reported) I wish I had time to search for the link, but I do not at this time.

Re: why this "may" have happened

Actually they claim and un-named officer told them he had been caught with drugs up his arse before. No record can be found of this being true anywhere. But you know cops words are unquestionably right even when wrong.

I have no knowledge of the legal system, but if it was me, and it's legally allowable, I would have made it a condition of accepting the settlement that the officers involved be fired. Not reassigned, not allowed to resign, FIRED.

Sexual assault

Once the civil trial is over, then the cops and doctors should be charged with sexual assault. The doc should be barred from practicing medicine in any capacity and the cops should not be able to get a job in any kind of future security work, ever.

That should all happen after they have served prison sentences that take them into old age.

Of course the city should pay - they hired the rapists. But the city should sue the rapists for the settlement plus attorney fees.